W.P. and B.P. v. Lennox and Addington Family and Children’s Services, 2008 CFSRB 17

CHILD AND FAMILY SERVICES REVIEW BOARD

W.P. and B.P.

v.

Lennox and Addington Family and Children’s Services

REASONS FOR DECISION ON MERITS

Date: March 13, 2008

Citation: 2008 CFSRB 17

Indexed as: W.P. and B.P. v. Lennox-Addington F&CS (CFSA s.68)

1W.P. and B.P. (the “Applicants”) applied to the Board under subsection 68.1(1)(b) of the Child and Family Services Act¹ (the “Act”). The Applicants complained to the Child and Family Services Review Board (the “CFSRB” or the “Board”) because they were not satisfied with the services they sought or received from a children’s aid society (“CAS”), which in this case, was the Lennox and Addington Family and Children’s Services (the “Respondent”).

DECISION

2The Board re-directs the matter to the Respondent for further review in accordance with these reasons. The Board finds that the Respondent failed to give the Applicants an opportunity to be heard at the Internal Complaint Review Panel (the “ICRP”) meeting about their allegations of worker conduct in terms of honesty, integrity, respectfulness, or competence in their dealings with the Applicants.

BACK GROUND

3On July 9, 2007, the Applicants submitted a “Request for Review of Children’s Aid Society CFSRB Application” form to the Board. In it, they claimed:

• that the Respondent failed to respond to their complaint within the timeframes required by the regulation;

• that the Respondent failed to comply with the complaint review procedure or with any other procedural requirement under the Act relating to the review of complaints;

• that the Respondent failed to comply with clause 2(2)(a) of the Act, which states: “Service providers shall ensure that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving”;

• that the Respondent failed to provide them with reasons for a decision that affected their interests; and

• that the Respondent had inaccurately recorded something on their file or record, and that this issue had not been resolved through the Respondent’s internal complaint review procedure.

4As of the time of application (July 9, 2007), the ICRP had not yet sent its written Summary document to the Applicants as the Regulation requires.² Therefore, as of that date, the Respondent had not yet fulfilled all its obligations under the Act.

5However, by July […], 2007, the Respondent did send its Summary document to the Applicants. The Applicants did not withdraw their complaint to the Board after receiving the Summary. Instead, they continued it, alleging that the Respondent still failed to adequately address their concerns.

6On July 17, 2007, the Board issued its decision that the Applicants’ request was “eligible for review.”³

7Following the eligibility decision, the Board had to decide whether to dispose of the application based on the written submissions alone or to hold a hearing. The Respondent was given notice of the Board’s intention to make this decision. On July 24, 2007, the Respondent filed an eight-page submission (which it called an “Answer”), plus five pages of exhibits, and urged the Board to dispose of the application without a hearing.

8On August 3, 2007, the Board rejected the Respondent’s request and decided to send the application to an oral hearing. This decision triggered a mandatory pre-hearing under section 16 of the Regulation.

9A telephone pre-hearing conference was held on October 30, 2007. The Applicants attended, as did the Executive Director of the Respondent and his legal counsel.

The Board’s role at a pre-hearing conference is:

(a) to settle any or all of the issues;

(b) to simplify the issues;

(c) to agree on facts or evidence to be used at the hearing; and

(d) to deal with or resolve any other matter that will assist in the just and expeditious disposition of the proceeding.⁴

10On November 8, 2007, the Board issued a Summary of the results of the pre-hearing.⁵ Since the parties did not settle the issues at the pre-hearing, the Board issued a Notice of Hearing on November 8, 2007, for an oral hearing on November 30, 3007.

11The hearing was held on November 30, 2007. The two Applicants attended in person. The Respondent sent its legal counsel and its Executive Director, who appeared as a witness.

DOCUMENTS BEFORE THE BOARD

12The Board heard oral submissions from both parties. The Board also heard testimony from the two Applicants, as well as from the Respondent’s Executive Director. The hearing was not taped or otherwise recorded, except by written notes by the Board members. For ease of reference, the Board sets out below the submissions of the parties and the Board’s interim decisions.

Date of Document	Description	Total pages
March […], 2007	Letter of complaint to G.M. from B.P.	4
July 9, 2007	Request for Review of Children's Aid Society CFSRB Application	3
July 17, 2007	CFSRB decision letter on "eligibility"	2
July […], 2007	"Answer" submission from Respondent in response to the application
	Fax cover letter dated July […], 2007	1
	Additional fax cover letter dated July […], 2007, with missing exhibit 2.	1
	Affidavit of service, dated July […], 2007	1
	"Answer" submission to CFSRB by G.M., signed July […], 2007	9
	Exhibit 1 to the Answer: acknowledgement of receipt letter to Applicants from G.M., dated March […], 2007	1
	Exhibit 2 to the Answer: “Summary of Results of Meeting” letter to Applicants from G.M. with findings of the internal complaints committee [ICRP], dated July […], 2007	4
August 3, 2007	CFSRB decision letter on hearing format: oral hearing	1
September 17, 2007	CFSRB Pre-Hearing Endorsement Sheet (No. 1). Hearing postponed	2
November 8, 2007	CFSRB Pre-Hearing Endorsement Sheet (No. 2). Hearing to proceed	4
November 8, 2007	CFSRB Notice of Hearing	2
November 23, 2007	Notice of Motion to Dismiss submission by Respondent
	Fax cover letter dated November […], 2007	1
	Motion to Dismiss by Respondent	2
	Submission in Support of Motion to Dismiss by Respondent’s lawyer.	5

13At the hearing, the Applicants brought a 4-inch, 3-ring binder (the “Binder”) of documents to the hearing. These documents had not previously been sent to the Board. Strictly speaking, the Respondent would have had these documents in its own files, but no notice was given that these documents would be relied upon at the hearing and therefore the Respondent did not bring them. That said, the Applicants did bring this binder with them to the ICRP meeting. The Board allowed the Applicants to refer to these documents while trying to impeach the testimony of the Executive Director. The documents themselves were not marked as exhibits.

JURISDICTION OF THE BOARD

14At the outset of the hearing, the Board described the complaint review process to the parties, explaining what the law allows the Board to do. As there was no recording of the proceedings, these reasons will set out in detail what was said.

15The Board explained that the Board is not a court-of-law and cannot, for example, order a CAS to:

• pay monetary damages;

• reprimand or fire staff;

• change the access arrangements for any children; or

• take steps to address the underlying merits of the complaint.

16The Board explained to the parties that sections 68 and 68.1 of the Act create an internal complaints process within each CAS in the province. The Board also explained that these sections were relatively new, having come into force only half a year prior to the Applicants’ complaint.

17Prior to November 2006, there was no uniform complaints procedure for children’s aid societies. The former section 68 merely required each CAS to establish its own written review procedure, with an opportunity for the person to be heard by the CAS’ Board of Directors, and ultimately a Provincial Director.

18In November 2006, new sections 68 and 68.1 came into force.⁶ The legislative changes put in place uniform rules for the handling of complaints by children’s aid societies. For example: the complaint must be in writing; the CAS must strike an ICRP panel to hear the complaint; and the ICRP must send a written summary of the results of the meeting within two weeks after the meeting.

19The new sections 68 and 68.1 also created a “right of review” to this Board. Thus, if complainants are not satisfied with a CAS’ handling of their complaint, they may ask this Board to “review” it. Complainants can also bring their complaints directly to the Board.

20Section 68 empowers the Board to review complaints that have already been reviewed by an ICRP. The Board determines whether a CAS has followed the rules in handling complaints made to it. Section 68 applications are sometimes called “post-ICRP” applications.

21Section 68.1(1) empowers the Board to review complaints made directly to the Board, without having first been heard by an ICRP. Section 68.1 applications are sometimes called “direct-to-Board” applications.

PRELIMINARY ISSUES

22In its “Notice of Motion to Dismiss,” dated November 23, 2007, the Respondent raised three preliminary issues.

1. That the Applicants failed to meet the requirements of subsection 68.1(4) of the Act.

2. That the Applicants had raised issues captured by subsection 68.1(8)(a) or (b) of the Act, namely, issues within the purview of court or falling under another decision-making process (such as labour relations).

3. That the Applicants had improperly expanded the scope of the review by submitting additional issues to the Board after the pre-hearing conference of November 8, 2007.

23At the hearing, only issue #2 was argued. For the sake of completeness, the Board will address all three points, but will first address issue #2.

1. Whether some or all of the complaints were within the “purview of court” [^7]

24The Respondent asserted that the hearing should proceed under subsection 68.1(4), and not under subsection 68(5).

25The application was filed as a section 68.1 application because the Respondent’s complaint review procedure had not been completed. The ICRP had not yet sent its Summary of the results to the Applicants. Shortly thereafter, however, the Respondent sent its ICRP Summary, and the Respondent’s complaint review procedure became officially complete.

26However, the Applicants still wanted the Board to continue processing their application on the new ground that the Respondent’s review procedure, although complete, failed to address their concerns. Subsection 68(5) of the Act governs applications where a complainant remains dissatisfied with the CAS’ handling of their complaint.

27The Respondent was trying to argue both sides of the fence in its Motion to Dismiss when it wanted the Board to take into account that the internal complaint procedure was complete, but still wanted the Board to treat the application as though an internal complaint had not been filed. The Board concluded that because the internal process was completed at the time of the hearing, the application was a review of that process under subsection 68(5).

28By treating the complaint as a review of the internal process, the Board must decide whether the Respondent was correct when it determined that certain issues were “within the purview of court”. This question is not a preliminary issue, but rather, is an issue that must be decided by the Board when determining the merits of the application.

29Therefore, the Board dismissed this preliminary issue.

2. Whether the Applicants had met the requirements of [subsection 68(5)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html#sec68subsec5_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html).

30By raising this as a preliminary issue, the Respondent implied that the application was not eligible for a hearing by the Board. However, an applicant does not need to prove its allegations under subsection 68(5) on a preliminary basis; it only needs to raise allegations that fit within the enumerated grounds under subsection 68(5). All of the Applicants’ complaints are described in subsection 68(5) and as such, the application can be heard by the Board.

31Therefore, the Board dismissed this preliminary issue.

3. Whether the Applicants could submit additional issues to the Board after the pre-hearing conference of November 8, 2007.

32At the heart of this issue is the right of a party to fair notice of the hearing, which includes notice of the issues for adjudication. The Board’s process would lack fairness if it failed to give clear notice of which issues are in question at the hearing and which are not, such that the parties would be unable to prepare and respond adequately.

33The Respondent argued that the parties agreed to a list of issues at the pre-hearing, and that it would be unfair to allow the Applicants to add new issues at this late stage in the process. At paragraphs 15 to 17 of its Submission in Support of Motion, the Respondent argued that the issues for this hearing were the ones numbered one to six on the Pre-Hearing Summary. However, a close reading of the Pre-Hearing Summary reveals that those listed items were just a reiteration of the complaints that the ICRP reviewed. They were not the “issues” for the Board’s review. i.e. they were not the questions that the Board needed to decide.

34The issues for the Board’s review were the ones the Applicants listed on their “Request for Review of Children’s Aid Society CFSRB Application” form. The first paragraph of the Pre-Hearing Summary captures the essence of the Applicants’ complaint:

The Applicants stated that the Application before the Board focuses on their perceived treatment by two Society workers, Mrs. W., Child-in-Care Worker, and Mr. B., Intake Worker. In particular, the Applicants feel the Society workers gave incorrect information to the OPP during an investigation in to allegations made in March 2006 […]

35To ascertain what the Applicants were truly complaining about, the Board turned to their original complaint letter of March […], 2007. The same theme runs all the way through their four-page letter regarding allegations of the Respondent’s workers lying to their children and to the police, having been abused by the workers’ dishonesty, and being shown disrespect by them.

36To support these allegations, the Applicants cited some 50-odd instances where the Respondent’s workers had allegedly lied in affidavits. However, the Board interprets those 50 items not as individual complaints, but rather, as illustrations of their allegations of dishonesty and injury at the hands of the two workers.

37Therefore, when the Applicants wanted to add the so-called “seventh” complaint during the Pre-Hearing, it was not anything new to the Respondent. It was, in fact, the essence of the Applicants’ complaint to the ICRP, namely, the allegation of dishonesty by the two workers. The Respondent has had ample notice of that complaint, starting with the Applicants’ original complaint letter of March […], 2007.

38Therefore, the Board dismissed this preliminary issue.

REASONS FOR DECISION ON THE MERITS OF THE REVIEW

39On applications under subsection 68(5) of the Act, the Board considers whether the Respondent complied with the complaint review procedure in the Act and the Regulation.

40The issues the Board considers are not the Applicants’ original complaints; only the Respondent’s ICRP hears those. Instead, the Board’s issues are the Applicants’ allegations that the Respondent failed to comply with the complaint procedure in some manner. The allegations fall into two main groups:

Group I: Allegations about unresolved inaccuracies in the Respondent’s files or records regarding the complainant; and

Group II: Allegations that the Respondent failed to comply with the complaint process under one of five headings, cross-referenced to subsection 68.1(4), namely:

1. Allegations that the Respondent refused to proceed with a complaint.

2. Allegations that the Respondent failed to respond to the complaint on time.

3. Allegations that the Respondent failed to comply with some aspect of the complaint review procedure or with some other procedural requirement under the Act relating to complaint reviews.

4. Allegations that the Respondent failed to ensure that the Applicants “had an opportunity where appropriate to be heard and represented when decisions affecting their interest are made and to be heard when they have concerns about the services they are receiving.”⁸

5. Allegations that the Respondent failed to provide the Applicants with reasons for a decision that affected their interests.

41(The Act also allows the Board to review any other matters prescribed in the Regulations, but none has been prescribed.⁹)

Group I: Regarding 68(5)(1) – allegations of inaccuracy in the Respondent’s files or records regarding the complainants

42The Applicants devoted a great deal of argument at the hearing to prove the existence of inaccuracies and false statements in the affidavit material gathered in their Binder. However, the point of their allegations was not to purge the affidavits of inaccuracies. After all, the affidavits had been filed in Court, and those Court proceedings, it was admitted, were over.

43The Applicants’ purpose was to prove their allegation that the Respondent’s workers had lied about or materially misstated the Applicants’ family situation.

44Although the Applicants certainly argued strenuously that there were important inaccuracies in the Respondent’s files and records, they never asked the Board for the remedy of ordering a Notice of Disagreement, pursuant to subsection 68(10)(a).

45That section is the only remedy that the Board can order in cases of allegations of inaccurate information. It is important to note that the Board has no power or interest in sifting through the affidavits to determine whether the information contained therein is accurate or not. Under the Act, the Board must decide whether an applicant has alleged an inaccuracy (under s. 68(5)1), and if so, then the Board will, as of right, make the order against the CAS to add the Notice of Disagreement to the Applicant’s file (under 68(10)(a)).

46Indeed, in this application, the Respondent voluntarily offered to add such a Notice of Disagreement. The Respondent also made the valid argument that the Applicants’ written disagreements have already been amply added to their files at the CAS by virtue of the records generated by this complaints process.

47The point is that the Applicants are not interested in the Notice of Disagreement. They sought investigation, explanations, and accountability into their allegations of dishonesty or incompetence by the Respondent’s workers – i.e. answers into the circumstances that allowed that alleged behaviour to exist and persist at the Respondent.

48The Board finds that the Applicants’ allegation of inaccuracies was not directed to a remedy under this heading, but rather, was an illustration to support allegations under another heading, discussed below.

49Therefore, the Board did not review this heading or issue a remedy under it.

Group II: Regarding matters described in [subsection 68.1(4)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html#sec68.1subsec4_smooth)

1. Regarding Section 68.1(4)1 – refusing to proceed with a complaint:

50The Board finds that the Respondent did proceed with the complaint, and therefore the allegation under this heading was not established.

2. Regarding Section 68.1(4)2 – failing to respond within the timeframe:

51The Respondent admitted that it sent the ICRP Summary document 101 days late.¹⁰ The Board therefore finds that the allegation under this heading was established. However, at the hearing, the Applicants stated that they sought no remedy for this breach, saying their application was not about missed deadlines, but about the substance of their complaint. Therefore, although this heading applied, no further order will be made because the Summary was eventually sent.

3. Regarding Section 68.1(4)3 – failing to comply with procedural requirements:

52Although the Applicants checked this box on page 2 of the Board’s application form, no serious argument was made at the hearing or in writing to support this allegation. Likewise, the Board did not find any substance to the allegation that the Respondent overlooked or flouted any procedural requirement, apart from the delay in sending the ICRP summary. The ICRP was composed of members with the prescribed status; a meeting was scheduled and held in person; and eventually a written summary of the results of the meeting was sent. Although the allegation that the Respondent failed to comply with the procedural requirements was established regarding the timeline for sending the ICRP summary, no further order will be made because the Summary was eventually sent.

4. Regarding Section 68.1(4)4 – failing to ensure that the Applicants had an opportunity where appropriate to be heard when they had concerns about the services they were receiving:

An Opportunity to be Heard

53The Applicants obviously had concerns about the services their family was receiving by the Respondent. They contacted the Respondent for help, and in the end, their children were made Crown wards. Along the way, they said they were abused and hurt by false information being used against them.

54This provision of the Act states that the right to be heard applies only “where appropriate.” It is not an unlimited right. The Respondent’s duty to listen to the concerns of parents or children does not apply 24/7 at every instance of a CAS’ decision-making. The duty is to hear them, where appropriate.

55Subsection 68.1(4)3 incorporates clause 2(2)(a) into the complaint review process. The implication, in the Board’s view, is to import into the complaint review process the duty by the Respondent to hear the concerns of people who bring complaints under this section. Clause 2(2)(a) already existed as a general duty under the Act. It was therefore unnecessary to import it into the ICRP process, unless it was pertinent to the complaints procedure. Where the Board is reviewing a complaint that has already been through the ICRP process, and is not a direct complaint to the Board under section 68.1, then subsection 68.1(4)3 covers the Respondent’s duty to hear complainants during the complaint process.

56The question for the Board, therefore, is whether the Respondent ensured that the Applicants had the opportunity, where appropriate, to be heard during the ICRP process concerning their complaints about the services they were receiving.

57There was no obligation on the Respondent to agree with the Applicants’ concerns or to act upon them. Its only obligation was to hear them. Therefore, the Respondent must answer whether the ICRP “heard” the complaints.

58The Respondent’s Executive Director attended the Board’s hearing and explained in detail the process that the ICRP followed. This description was not disputed by the Applicants.

59The ICRP convened an in-person meeting with the Applicants. It lasted over two hours. The Applicants talked about their experiences with the agency. The ICRP sought clarifications on some points. The Executive Director offered a summary of specific issues and themes and checked with the Applicants that those themes captured their concerns. Eventually, a written Summary of results was sent to the Applicants.

60In the Board’s view, this evidence showed that the Respondent took the necessary steps to hear the Applicants during the complaint process. However, the ICRP did not hear all of the Applicants’ complaints.

Complaints Decided by or Before the Court: Four Steps

61The ICRP decided to characterize some of the Applicants’ original complaints as matters that were decided by the Court and thus excluded them from review by operation of subsection 68(12).

62That provision reads as follows:

68 (12) A society shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court;

(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995.

63The gist of the Respondent’s argument on this point was that all of the Applicants’ complaints had been duly processed through the ICRP, and the ones that were not were within the purview of Court, or subject to another decision-making process under the Labour Relations Act, 1995.¹¹

64At this point, it is useful to examine more closely what the wording at subsection 68(12)(a) means.

65Section 68(12)(a) has four elements and operates to prohibit a CAS from conducting a review of a complaint if:

i. the subject

ii. of the complaint

iii. is an issue

iv. that:

a. has been decided by the court, or

b. is before the court

66It is the Board’s view that the subject of the complaint in this case has to do with allegations of CAS worker conduct in terms of honesty, integrity, respectfulness, or competence regarding the Applicants.

67In their original complaint letter, the Applicants listed some fifty instances of alleged false information, but the rationale for doing so was not to purge the Court file of wrong information. Rather, the Applicants wanted to “set the record straight” to prove their larger allegation about worker misconduct on the part of two of the Respondent’s workers.

68The Board finds that the “issues” before the Court were about child protection and criminal charges involving the Applicants. By comparison, the complaint to the ICRP was about the conduct of the workers towards the Applicants.

69The issues in the Court proceedings were not identical to the subject of the complaint. The subject of the complaint was the honesty, integrity, respectfulness, or competence by the workers handling the Applicants’ case. Those issues were not matters that would have been before a Court.

70The Court will not adjudicate worker misconduct, whether there was a pattern of misconduct, or whether the Applicants were treated with honesty, reasonableness, or respect, or whether a CAS acted with integrity or competence. Those are issues that the Respondent could review, if it so chose.

71In essence, this was the Applicants’ main argument at the oral hearing. They agreed that the ICRP had been duly constituted and the process had unfolded more or less according to the procedure, but they felt that the Respondent never really turned its mind to the main reason they were there. That main reason was their allegation of having suffered “abuse” by the Respondent’s workers. The allegation was an abuse of their power, as workers, to influence the removal and ultimate custody of the children, by making statements that would be relied upon by the police and the Court. The Applicants alleged that the workers made false statements, which constituted “misconduct” in the Applicants’ eyes.

72For these reasons, the Board concludes the ICRP was not correct in relying on subsection 68(12)(a) to decide against hearing the Applicants’ allegations of worker misconduct. The Board finds that the subject of the Applicant’s complaints was not before the Court.

Labour Relations Act

73Alternatively, the Respondent characterized the allegations of worker misconduct as a matter that was subject to a decision-making process under the Labour Relations Act, 1995, and therefore not subject to review by the Respondent.

74The Board was not persuaded by this argument. True, the Applicants were not shy about wanting punishment or firing of the two workers in question, which were not remedies that the complaint process could order. However, the ICRP could still have listened and heard the complaints about the workers, and possibly have learned or done something as a result.

75Instead, what happened is that the Applicants were told at the outset of the ICRP meeting that the panel would not hear the allegations of false statements by the workers, as that was within the purview of Court or subject to the Labour Relations Act, 1995.

76If subsection 68(12)(b) were interpreted so that all allegations of CAS worker or staff misconduct were ineligible for review, then virtually no complaints would get through the front door of the complaint procedure, given that a CAS only ever acts through its workers and staff.

77It is a separate issue as to what the ICRP does after it hears the allegations of worker misconduct, and the ICRP is not bound to take any formal action.

78However, in this case, the Board finds that the ICRP failed to hear any allegations on this point. In so doing, the ICRP failed to give the Applicants an opportunity to be heard at the meeting about their allegations of worker misconduct (dishonesty, and/or negligent statements).

79Therefore, the Board redirects the matter to the Respondent for further review, pursuant to subsection 68(10)(c) of the Act.

5. Regarding Section 68.1(4)5 – failing to provide the Applicants with reasons for a decision[^12] that affected their interests.

80In response to the Applicants’ written complaints, the Respondent struck an ICRP; held a meeting that lasted over two hours; gave the Applicants the opportunity to be heard in person; and sent a written Summary of the results of the meeting to the Applicants.

81The Summary was a four page, single-spaced response. It summarized the results of the meeting, including the Respondent’s answers to the six matters that were left for follow-up after the meeting. For each point, the Respondent provided a detailed response regarding the agreed upon items for follow up.

82In the Board’s view, the Respondent’s explanations disproved the allegation that the Respondent failed to provide reasons for its decisions regarding the internal complaints process, except for those complaints that the ICRP decided not to hear, which the Board is redirecting to the Respondent for further review.

ORDER

83The Board finds that the Respondent failed to give the Applicants an opportunity to be heard in the internal complaint procedure about their allegations of worker conduct in terms of honesty, integrity, respectfulness, and competence in their dealings with the Applicants. Therefore, the Board orders that these allegations be redirected to the Respondent for further review in accordance with these reasons.

84The Board orders the Respondent to conduct its further review in accordance with the timeframes set out at sections 3, 5, 7, and 9 of the Regulation. Therefore, within 7 days after receiving this order, the Respondent is to notify the Applicants of the date and time of the meeting with the ICRP, and thereafter to schedule the meeting and send the Summary document in accordance with the Regulation.

85If the Applicants have complaints regarding the Respondent’s further review, they may apply to the Board with a fresh application in accordance with the Regulation and section 68(5) of the Act.

Mary Wong Panel Member

Donald Butler Panel Member

Dated at Toronto, Ontario this 13th day of March, 2008.

CONCURRING REASONS FOR DECISION

86I have had the benefit of reading the reasons for decision of my two colleagues in the majority. Although I agree with their disposition of the application and their reasons, I wish to provide additional reasons to explain my decision, especially because the statutory provisions under consideration are new and there is not yet any appellate court guidance in interpreting them. To avoid repetition, I will rely on the majority’s decision and not recite the background to the application or address any other issues that are already covered by my colleagues’ decision.

87This application proceeded under section 68(5) of the Act, as an application following the completion of the Respondent’s complaint procedure. The first point I wish to address concerns the interpretation of section 68.1(4)(5) of the Act within the context of an application under section 68(5). Section 68.1(4)(5) states:

The following matters may be reviewed by the Board under this section:

… Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

88One of the allegations advanced in this application was that the Respondent had failed to give the Applicants reasons for the actions of its workers. Therefore, the Board¹³ asked itself: “What was the Respondent’s duty to give reasons?”

89The Act imposes no obligation on a CAS to provide reasons at the time the actions are taken. The duties of a CAS in this regard are set out at section 2 of the Act, which states as follows:

Service providers shall ensure,

(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving; and

(b) that decisions affecting the interests and rights of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.

90As can be seen, section 2 does not require a CAS to provide “reasons.” Instead, a CAS is required only to make decisions according to clear and consistent criteria and which are subject to procedural safeguards.

91The only place the Act mentions “reasons” is in the complaint procedure section of the Act, at section 68.1. From this, I conclude that whatever reasons the Act requires a CAS to provide in the context of a complaint under section 68(5), they are only those reasons that are required as part of complying with the complaint procedure.

92When a court or quasi-judicial tribunal, such as this Board, sees the word “reasons,” it is easy to assume that it means the kind of reasons that a court or tribunal would render. For example, reasons for judicial decisions entail findings of fact, weighing of evidence, and adjudicating rights or legal entitlements.

93However, in reviewing the Act and Regulation, I could find no duty on the Respondent to render an adjudicative decision or provide judicial-like reasons. Instead:

• The Act merely states that the CAS shall “deal with” the complaint in accordance with the Regulation.¹⁴

• The Regulation states that the CAS must:

i) Determine whether the complaint (or parts thereof) is eligible for review;¹⁵

ii) Establish an Internal Complaint Review Panel (“ICRP”);¹⁶

iii) Hold a meeting with the complainants;¹⁷ and

iv) Send a Summary of results of the meeting, including agreed upon next steps, if any.¹⁸

94The language used by the Act and Regulation is not the language of adjudication of rights: i.e. to deal with a complaint at a meeting (not a hearing) and then prepare a summary of results, including agreed upon next steps, are not characteristic of a quasi-judicial or adjudicative process, apart from pre-hearings or mediations. Nor is the decision-maker a neutral or independent body. For example:

• The CAS (about whose conduct complaints are made) appoints all the members of the ICRP.¹⁹

• The ICRP can be as small as a two-person panel, consisting of a senior member of the CAS’ staff and a member of the CAS’ board of directors.²⁰

• The ICRP determines who, in addition to the complainant and one person of his or her choosing, is permitted to attend the meeting.²¹

95Thus, the ICRP is true to its acronym: an internal panel, created and controlled by the CAS against whom the complaint was made.

96Under these constraints, and in the absence of a fact-finding or adjudicative mandate, does the Act expect a “decision” and “reasons” from the Respondent?

97Given that the only written output required by the complaints procedure is the ICRP’s Summary document,²² one might presume that the “decision” would be the ICRP’s Summary document. However, strictly speaking, section 68(5) of the Act speaks of a decision of the CAS, and not by the ICRP.

98When the Act refers to the “decision” of the Respondent, the Board asked itself whether it was one and the same as the ICRP’s Summary document, or whether the Respondent was intended to make a decision separately from the ICRP’s?

99The majority in the present application wrote that the meaning of the word “decision” in the Act was unclear. The Board was unsure whether this “decision” was the ICRP’s Summary document or some other decision to be taken by the Respondent. This distinction (if any) was likely unclear to the Respondent as well because its ICRP’S Summary document took the form of a letter to the Applicants on the Respondent’s letterhead – signed by the Respondent’s Executive Director in his dual capacity as Executive Director and Chair of the ICRP. Therefore, when the Applicants received that letter, there was no distinction between the Respondent and its ICRP.²³ This is no criticism of the Respondent, merely an observation of how the Act permits the ICRP to function as internal committee of the CAS, itself.

100Although the Act speaks of the CAS’ decision, I could find no statutory requirement for either the ICRP or the CAS to make any substantive decision or adjudication in the course of the complaints procedure. In other words, the Act refers to a CAS “decision” that has no adjudicative content.

101However, since all words in an Act are deemed to have meaning and not to be redundant, there must have been some rationale for using the word “decision” in section 68 of the Act.

102A CAS might decide to take some remedial steps as a result of going through the complaints procedure, but then again it might not. The Respondent’s “decision” seems more optional than anything else. Put another way, the Respondent’s “decision” might be to take no further action at the completion of the complaints procedure.

103Looking at all the pieces of the complaint procedure, the Act creates an internal and non-neutral process that gives complainants an opportunity to speak to the senior management of their CAS, perhaps to build trust and for mutual education. Atop this procedure sits the Board to review, upon request, the CAS’ compliance with the procedural requirements of the scheme.

104On section 68(5) applications such as this, the Board does not participate in assessing the validity of any complaints on their merits, nor is there anything for the Board to overturn or quash in such a process. The Board’s only substantive remedies are to redirect the complaint for further review or to order a CAS to provide written reasons for its “decision,” i.e. the decision whether to take further action at the completion of the complaints process.

105In this application, the Respondent agreed at the ICRP meeting to take further steps. Those further steps were listed in the ICRP’s Summary document, as required by section 9 of the Regulation. The Summary explained the actions that the Respondent took at the completion of the complaint procedure in this case. The Board unanimously concluded that the Respondent’s explanations, as provided in the Summary, satisfied the requirements to provide reasons for the Respondent’s decisions taken at the completion of the complaint procedure.

106In coming to the conclusion that the Respondent did not fail to provide reasons, I had the benefit of considering other decisions of this Board.

107The Board has issued only a few decisions on the merits of applications under section 68(5). Decision V. and H. v. Children’s Aid Society of the County of Simcoe was one of them. It was issued the day prior to the oral hearing in this review and thus was unavailable to the parties for comment.

108The following passage from V. and H. v. Children’s Aid Society of the County of Simcoe is instructive:

Where the Board is asked to review the CAS’s decision after an ICRP has completed its review (Section 68), the Board is no longer reviewing the reasons given by the CAS for a decision it took which affects a complainant’s interests; it is now reviewing the decision of the CAS with respect to the complaint. Section 68(5) provides that a complainant may apply to the Board “for a review of the decision made by the society upon completion of the complaint review procedure.”

[I]t is reviewing the decision of the CAS on the complaint and the adequacy of reasons for that decision. While the legislation does not specify that the CAS be obligated to provide reasons, this may be inferred from the fact the CAS is obligated to provide a decision upon completion of the complaint review procedure and one of the remedial powers of the Board is to order the CAS to provide written reasons.

The additional remedies available to the Board for this type of complaint under Section 68 are to confirm the CAS’s decision, or redirect the matter to the CAS for further review. It may also be inferred, then, that the Board is to consider whether the complaint has received an adequate review, in addition to considering whether adequate reasons were given.

The “duty to give reasons” is well established in administrative law (Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817).²⁴ The reasons must enable the party to know why the tribunal made the decision that it did. It is not sufficient for the tribunal to simply summarize the position of the parties and baldly state its conclusions, nor is it sufficient for the tribunal to merely state it agrees with the submissions of one party without stating why.

The only evidence before the Board as to the CAS’s reasons for its decision, and whether it conducted an adequate review in coming to that decision, is the ICRP written summary response to the complaints. The CAS has produced no other decision for the Board’s review. Thus, for the purposes of this hearing, the ICRP response is the CAS’s decision under review. The Board will review each of the complaint responses for adequacy.

109Thus, the Board in V. and H. v. Children’s Aid Society of the County of Simcoe saw its role as adjudicating whether the Respondent:

• gave the complaint “adequate review”; and

• provided “adequate reasons.”

110The Board then reviewed the Respondent’s investigation of the complaints and its responses for “adequacy.”

111The decision in V. and H. v. Children’s Aid Society of the County of Simcoe relied upon the Baker decision to support its conclusions. In that case, the Supreme Court of Canada was reviewing the decision of an immigration officer whose duty it was to adjudicate whether a woman with Canadian-born children could be deported. The officer was considered a tribunal of one who was required by statute to make a decision regarding her deportation. The issue before the Court was whether the immigration officer was required to provide written reasons under the doctrine of procedural fairness.

112The Court in Baker ruled that the duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. Although the Court held that written reasons are not required in all instances, they were in the Baker case because of the profound importance of the decision on the immigrant (who was subject to deportation) and because there was a statutory right of appeal.

113In this application, I would distinguish Baker because the original decision-maker in Baker was an immigration officer who was adjudicating rights under a statutory entitlement scheme (namely, the right to remain in Canada). By contrast, the original “decision-maker” in this application was the ICRP, which did not have an adjudicative mandate. Consequently, the jobs of the Respondent’s ICRP and the immigration office are not comparable in relevant ways.

114As discussed earlier in these reasons, I do not see the ICRP’s function as court-like or quasi-judicial. When the Court in Baker refers to the “tribunal,” the comparison in our context is to the Board and not to the ICRP or the Respondent. The Board is required to provide judicial-like reasons for its decisions, and not the ICRP or the Respondent. The type of reasons that the Respondent is required to produce out of the complaint procedure are not judicial-like in nature, but rather explanations from its own subjective perspective as to why it did or did not do the things that are the subject of the complaint.

115I therefore decline to adopt the reasoning in V. and H. v. Children’s Aid Society of the County of Simcoe, which effectively likened an application under section 68 to a judicial review of the ICRP’s Summary document.

116In addition to the Act’s ambiguity around the words “decision” and “reasons,” the Act also uses the word “review” in two materially different ways.

117The verb “review” is used both with respect to the ICRP’s handling of complaints and to the Board’s handling of applications. Clearly, what the ICRP does with complaints under section 68 and what the Board does with them are two different things. For example:

• The ICRP hears the complaints in substance and on their merits, within its internal complaint resolution scheme; whereas…

• The Board hears allegations of non-compliance with the complaints process.

118Confusingly, the Act uses the verb “review” to describe both processes. This confusion creates expectations by the parties that the Board can and should delve into the substance of complaints to see whether they are valid or to see whether the Respondent has done enough to address them. The “complaints” at the ICRP stage are different from the procedural “allegations” at the Board stage, making the process confusing and legalistic for the average citizen. This confusing nomenclature creates a wrong impression that the ICRP is a decision-making panel of first instance (which it is not), whose decisions may be “appealed” to the Board.

119The ICRP’s duty is to listen to the complaint, to make a summary, and to identify agreed upon next steps within certain deadlines – but not to adjudicate any questions or rights.

120Thus, I did not adopt the approach, favoured by decision V. and H. v. Children’s Aid Society of the County of Simcoe, of using the Respondent’s Summary document as a “decision” that the Board could legitimately review in the manner of a judicial review.

121The ICRP is not empowered to make findings of fact, to decide who was “right” and who was “wrong,” or to order any remedy. Were the ICRP to have those powers, then its output would be a true “decision” for which the parties might reasonably expect reasons. For example, in a recent decision under the Education Act, the Divisional Court wrote about the purpose of requiring reasons in administrative law settings. The issue was the requirement of providing reasons to a student whose principal had expelled him from school. The student appealed the expulsion to his school board, and then to the Divisional Court. The Court wrote:

When we examine the rationale for requiring reasons […] Reasons are required to inform the losing party why they lost and to equip that party with sufficient information to effectively pursue an appeal, if desired.²⁵

122There is no “appeal” from the ICRP’s meeting or from the Respondent’s decision. On the contrary, the Act contains a privative clause that makes CAS decisions under section 68 “final” except for an application to the Board for a review (on procedural grounds). ²⁶

123In my view, the Internal Complaint Review Panels are unique in character, and not akin to a principal or school board expelling a student or to an immigration officer deciding whether a person can be deported. The complaint procedure scheme as a whole does not contemplate declaring winning or losing parties, creating a record, investigating allegations, making findings of fact, or rendering a verdict – all things that are the hallmarks of what “reasons” mean in an adjudicative setting.

124Consequently, I found it difficult to adopt the reasoning in the Board’s decision V. and H. v. Children’s Aid Society of the County of Simcoe, which inferred that the Board could review whether the Respondent gave the complaints “adequate review” and whether the ICRP provided “adequate reasons.” Although the Board’s reasons in V. and H. v. Children’s Aid Society of the County of Simcoe were cogent, I found that decision hard to reconcile with the wording of sections 68 & 68.1 and Regulation, and with a close examination of the purpose and operation of the ICRPs. To further probe the question, I found it useful to compare the language in our Act with the statutory language governing other administrative tribunals that carry out “review” functions.

125As an example, I looked to the Health Professions Appeal & Review Board [“HPARB”].²⁷ The HPARB’s enabling statute gives that tribunal the express mandate to consider the adequacy of an investigation and the reasonableness of the decision:

In a review, the Board shall consider either or both of,

(a) the adequacy of the investigation conducted; or

(b) the reasonableness of the decision.²⁸

126By contrast, our Act gives no similar mandate to this Board. For example, the ICRP is not required to conduct an investigation, and therefore this Board cannot require one. In addition, the words “reasonableness” or “adequacy” appear nowhere in our Act or Regulation.

127That is why the Board in V. and H. v. Children’s Aid Society of the County of Simcoe could only infer that the Act gave power to the Board to consider the adequacy of the review and reasons. On a section 68 application, the decision under review is the Respondent’s decision at the completion of the complaints procedure. In creating this review procedure, the Legislature could have added language to the Act permitting the Board to consider the adequacy of investigation or reasonableness of decisions. However, it did not do so.

128This distinction strengthens the conclusion that our Board should review for procedural compliance, only. I base my conclusion both on the explicit wording of the statute and on a consideration of the role and actual operation of the ICRP.

129By comparison, the HPARB has explicit, statutory review powers because the committees whose decisions that board reviews are responsible for adjudicating rights. The HPARB reviews decisions of complaints committees from the 22-odd health professional colleges (physicians, dentists, chiropractors, etc.). Those committees are obligated to conduct investigations and to decide whether a health professional should face disciplinary charges.

130The ICRP concept, by comparison, has no similar adjudicative authority.

131It therefore makes sense that the CFSRB would have no explicit power to consider the adequacy of any investigation (because the ICRP is not mandated to do an investigation or make findings of fact) or to consider the adequacy of complaint responses or decisions (because the ICRP’s only output is a Summary document).

132As discussed above, an ICRP is, for all practical purposes, a committee of the CAS itself, and not part of any independent regulatory scheme governing the conduct of its members in the way the college’s Complaints Committee are for self-regulated health professionals.

133The Legislature could have structured the ICRPs as independent, adjudicative, or investigative bodies, but chose not to. Therefore, the CFSRB cannot review for things like adequate investigations or reasons for decisions that were never required to be there in the first place.

134In addition to considering adequacy of investigations and reasons, the Board in V. and H. v. Children’s Aid Society of the County of Simcoe also issued “recommendations” to the Respondent. For example, in decision V. and H. v. Children’s Aid Society of the County of Simcoe, the Board incorporated the following recommendations into its order:

In addition, the panel strongly recommends further action on this point. In particular, that the CAS consider developing workshops for staff, as well as clear and complete information for future kinship families, around (but not restricted to) the following issues:

• What is a kinship family?

• How does it differ from a foster family?

• What are the rights and obligations of kinship families toward the CAS?

• What are the rights and obligations of the CAS toward kinship families?

• Specifically, what input can a kinship family have into decisions for care? How much deference does the CAS have to give the family in making its decisions around “best interest of the child”?

135In the present application, I considered providing recommendations to the Respondent regarding its ICRP’s further review of the allegations of worker misconduct. Consequently, I considered the Board’s precedent, set in decision V. and H. v. Children’s Aid Society of the County of Simcoe, of issuing recommendations. However, for the following reasons, I was not persuaded that the Board has authority to issue recommendations. Therefore, for the reasons below, I declined to issue recommendations:

• The Board is a creature of statute, and only has the powers given to it under the law. There is no statutory mandate to make recommendations. Although section 68.1(7)(f) states that the Board may “make such other order as may be prescribed,” yet, no other orders have been prescribed.

It is pertinent to note that the HPARB, discussed above, does have explicit statutory authority to “make recommendations the Board considers appropriate to the Complaints Committee.”²⁹ The Legislature or the Lieutenant Governor in Council could have included this power in the Board’s mandate but did not.

• Formulation of recommendations is not a task inherently associated with adversarial, quasi-judicial bodies, which normally adjudicate rights as between parties (although there are exceptions).

Recommendations may seem harmless, as being unenforceable. However, formulating proper recommendations often requires a broader consultation among a variety of stakeholders and issues. The Board holds its hearings in private without public notice. Any recommendations would be made in a contextual vacuum.

• The Board has no expertise or knowledge of the myriad other regulations that govern CASs, such as collective agreements, funding agreements, directives from the Ministry of Children & Youth Services, and simple budgetary restraints. The Board is not the licensing or regulatory body for CASs.

The Board is not a policy-making tribunal, coroner’s inquest, or judicial inquiry, which are set up to elicit and consider a variety of points of view. The statutes governing those bodies contain their own procedural safeguards to ensure that their recommendations are arrived at via a fair process.

In particular, the Board has no role to play in recommending that a CAS spend money on new policies, programs, or staff workshops, which the decision V. and H. v. Children’s Aid Society of the County of Simcoe purported to do.

• Conflicting recommendations against the same CAS may arise from different panels of the Board, given that decisions of one panel of the Board do not bind other panels.

136To further probe this question of recommendations, I found it useful to look to other administrative tribunals that have explicit authority to make them. For example, the Complaints Committee of the Board of Funeral Services is charged with considering and investigating complaints regarding the conduct of undertakers and funeral homes in Ontario and can, and does, make recommendations.³⁰ Section 14 of the Funeral Directors and Establishments Act³¹ gives the Complaints Committee various powers, as follows:

(1) The Complaints Committee shall consider and investigate complaints regarding the conduct or actions of any licensee, but no action shall be taken by the Complaints Committee under subsection (2) unless,

(a) a written complaint has been filed with the Registrar and the licensee whose conduct or actions are being investigated has been notified of the complaint and given at least two weeks in which to submit in writing to the Committee any explanations or representations the licensee may wish to make concerning the matter; and

(b) the Committee has examined or has made every reasonable effort to examine all records and other documents relating to the complaint.

(2) The Complaints Committee in accordance with the information it receives may,

(a) consider all or part of the matter;

(b) direct that all or part of the matter be referred to the Discipline Committee; and

(c) […] take or recommend such action that it considers appropriate in the circumstances and that is not inconsistent with this Act, the regulations or the by-laws.

137Thus, the Complaints Committee has clear statutory powers of decision to: examine all records and documents relating to the complaint; consider the matter; refer the matter to discipline; and take or recommend any actions that are not inconsistent with its Act, regulations or by-laws. Moreover, if the Complaints Committee decides against sending the complaint to the Discipline Committee, the complainant may request a full, de novo quasi-judicial hearing at the Licence Appeals Tribunal, which can substitute its own decision for that of the Complaints Committee.³² Thus, both the Committee and the Tribunal have the explicit statutory power to make recommendations – but that power is present within a context of an independent, investigative agency that regulates the professional conduct of licensed funeral directors and homes, which is not comparable in relevant ways to a CAS or its ICRP.

138As an aside, it is interesting to note that the family of a deceased person in this province has access to an external, independent, adjudicative agency to complain about poor funeral services. However, for families of children in care, the Child & Family Services Act provides an internal complaint procedure. This difference in function may explain why the Board has no explicit powers to issue recommendations.

139It bears noting that the Legislature set out the Board’s mandate after considerable debate and consultation concerning the introduction of legislation that would (or would purport to) provide oversight of children’s aid societies in this province. Various proposals were advanced during legislative debates and public hearings.

140In particular, the Legislature eschewed an independent investigative model. Under this model, an independent state agency, such as the Ombudsman, would investigate complaints on behalf of one or more complainants. For example, the Ombudsman Act³³ already gives that office the power to compel witnesses, subpoena documents, and to look at individual and system-wide problems affecting many users of provincial services.

141The current Ombudsman, André Marin, proposed that the Legislature expand the jurisdiction of his office to permit independent investigative oversight of children’s aid societies in Ontario, as is the case in all other provinces in Canada.³⁴ A private member’s bill was introduced to this effect but not passed.³⁵ Nonetheless, hundreds of Ontario residents still complain to the Ombudsman about children’s aid societies, even though he cannot investigate them.³⁶

142Instead, the Legislature placed the CAS complaints scheme into an adversarial model in which complainants bear the burden of advancing their complaints within the very organization about which they are complaining. The Act’s procedure is adversarial because, within the context of the complaint procedure, the complainants are adverse in interest to the organization against which the complaint is made.

143The concept of resolving disputes by means of an “adversarial system” has a powerful appeal in societies whose legal systems are rooted in the common law. The Act’s internal complaint procedure draws on this appeal by treating individual complaints against a CAS as, not matters of public interest and therefore justifying a state-driven process, but as private disputes in need of individual resolution.

144Our legal system traditionally resolves private disputes via an adversarial system in which advocates represent individual positions before a neutral person who tries to determine the truth of the case. The internal complaint procedure, however, is not held before a neutral person, and has no mandate to make findings of fact or determinations of truth. Consequently, the Applicants found themselves having to advocate for themselves within a process that had an adversarial “feel” but lacked the other attributes and protections of an adversarial system, such as a neutral third-party or fact-finding upon which they could rely at the end of the procedure. Without those attributes, complainants may feel vulnerable by participating in the complaint procedure. For example, complainants may be involved in an on-going relationship with a CAS and therefore reluctant to “make waves” for fear of retribution.³⁷

145The Applicants in the present case said as much in their original complaint letter when they wrote about their fear of losing access to their daughter if they complained. At the oral hearing, B.P., co-Applicant, stated (as best I could write it down):

The Executive Director said to us at the start of the ICRP meeting: “Don’t expect any thing to change, but we will take what you say into account.” We found that scary.

How could the Executive Director sit on a panel without trying to protect his workers. The panel should be outside his workers. How can he do an accurate report if he works there and is part of everything?

I’m going into this meeting, I didn’t know what to say. I was scared. We didn’t know what we could talk about. We did what we could.

When we brought our complaints to the ICRP, we hoped they would look at them. I don’t feel we had the chance to show our case. We go into this ICRP meeting, we don’t want to jeopardize the few visits we were having with our daughter. The CAS runs the show. So what do you do?

146The Applicants described the complaints process as unfamiliar, daunting, and not impartial. This is not surprising because, as the ICRP name suggests, it provides an internal complaints review by a “captive” complaints body that is created and controlled by the CAS. The Applicants found it disappointing to learn that the ICRP was not the impartial and independent body they had thought it was.

147In turn, the Respondent’s Executive Director also spoke of frustration with the process, but for a different reason. He stated as follows (as best I could write it down):

The ICRP process began with hearing the complaints and trying to understand the nature and specificity of them, and to read to you a summary that fairly and accurately represented the outstanding matters in the complaint, as I understood them to be, what you wanted us to take as your concerns. My job was to investigate the concerns brought to us, to review the information we found in the notes, find an answer, and make a judgment call. […]

The CAS asked the family to help the ICRP understand the big, general concerns, to use the complaints process as a problem solving exercise, not a line-by-line analysis of which specific complaints met the criteria exactly. […]

Rather than going point-by-point to rule on the eligibility of each item, we started the ICRP meeting with a general framing of the complaint to help us better understand the general issues to resolve, and the specific issues.

Our approach was to use the meeting as an opportunity to problem solve. We were hearing their information and also asking the family to tell us what they would like us to do, how we could satisfy them … how do we work together in the future to avoid unpleasant experiences. […]

My interest and intent that day was not one of exclusion, but rather to seek themes and areas of concern, and if there was a way to broaden the topic: for example, “communication” versus a single instance of a phone call not returned. I was not looking for things that were ineligible, but looking to see what was eligible. Was there a bigger pattern of difficulty with regard to communication between the parents and the CAS?

148When considered in its context, the Executive Director’s approach is not an unreasonable way of approaching the Applicants’ complaints. His stated goal was to improve communication and avoid unpleasant experiences in the future. As reasonable and desirable as that approach may be, it describes a process that is different from independent investigation and oversight.

149The fact is that the ICRP process is, from the outset, an internal process to the CAS. The ICRP functions as a kind of CAS customer service department.³⁸ After filling out what might be called a section 68 comments card, CAS clients get to meet with the agency’s senior staff to discuss their complaints. As complaints processes go, it is still like asking the fox to guard the hen house.

150Given this legislative context, what is the role of an independent, quasi-judicial tribunal in reviewing the output of this complaints procedure? Does the availability of review by this Board inject independence and oversight into the overall complaints procedure?

151The Board’s role is to conduct reviews, upon request, of whether the Respondent followed the complaints procedure as the statute intended. Therefore, the Board’s review cannot transform the nature or essence of the complaint review into something that the statute does not contemplate it to be.

152The Applicants applied to this Board for answers and accountability, not for a variety of complex, technical rulings on jurisdiction or the purview of courts. The Applicants told the Board as much at their hearing. For example, the Applicants took the opportunity to write their own message to the Board on the back of page 1 of their initial application form. It read as follows:

Good morning,

[…] I know there (sic) busy I’m not the only family they deal with however I need answers and accountability. Please call if need more information. My next stop is to seek Mrs. Chambers’ office. God Bless and thank you.

[Signed by Mrs. […] one of the Applicants]

P.S. This is only the Tip of the abuse we have faced.

153The Applicants’ original complaint letter of March […], 2007, alleged the Respondent’s workers abused them, and mislead the police and the courts, and that their family was broken up and destroyed as a result. They wanted a “thorough investigation” so that it would be made right for other families and children.³⁹

154The Board is an independent and impartial quasi-judicial tribunal. In adjudicating applications under sections 68 & 68.1, the Board is perceived by applicants as the public guarantor of independence and credibility in the complaints procedure. However, the Board can only work with the ingredients it is given.

155When a tribunal, such as this Board, renders a decision, the public tends to attribute to it the character of a legal verdict. The Board’s stamp of approval in effect launders the Act’s internal and non-neutral complaint procedure through the Board’s quasi-judicial process and thus lends the legitimacy of the Board’s independent and impartial status to the CAS complaints procedure as a whole.

156When the reforms to section 68 were introduced in the Legislature, the minister at the time said: “Through Bill 210 and the regulations that will follow, we will strengthen the client complaint mechanism to provide a higher standard of accountability.”⁴⁰

157Judy Finlay, the former Chief Advocate of the Office of Child and Family Service Advocacy, stated to the Gouge Public Inquiry⁴¹ that there should be an independent agency to

[…] conduct critical incident and child death reviews that is:

• independent from any ministry of the government, and from any agency or institution responsible for delivering services that could be the subject of a review;

• be composed of a multi-disciplinary team including but not limited to medical experts;

• have investigative powers;

• be accountable to the public and have the authority to make public reports; and

• be provided with adequate funding.

158The CAS & ICRP do not meet the first criterion of independence. The Board does not meet the second, third, or fourth criteria. The new Office of the Provincial Advocate for Children and Youth meets the first, but not the third criterion.⁴²

159Given the newness of the legislative provisions, the absence of appellate court interpretation and guidance, and the fact that the hearings are not recorded or open to public scrutiny, I believe it is important to make the Board’s reasons and differing points of view known through its decisions, which is what I have endeavoured to do through these reasons.

Brian Cohen Presiding Board Member

Dated at Toronto, Ontario this 13th day of March, 2008.

In December 2005, the Ombudsman appeared before the Standing Committee examining Bill 210, which amended the Child and Family Services Act. He urged that it be changed to allow the Ombudsman to investigate complaints about CASs. Instead, the amended Act – which came into force on Nov. 30, 2006 – merely broadened the adjudicative authority of the Child and Family Services Review Board. The regulations confirm that complaints about the accuracy of a CAS file or record must go through the CAS’ internal process before being raised with the Board. The Board has paltry remedial power, including steps such as ordering a “note of disagreement” to be added to a complainant’s file, confirming a CAS’ decision, or ordering a CAS to provide written reasons for a decision. Moreover, complaint areas within its jurisdiction are essentially procedural. The type of complaints that may be raised include, for example, that a CAS has failed to respond to a complaint within the required time frame; failed to comply with the complaint review procedure; failed to give a child or parent an opportunity to be represented when decisions affecting their interests are made; or failed to provide reasons for a decision. The Board does not investigate complaints about the conduct of children’s aid societies and there remains no independent external body that can do so.

Source: Ombudsman of Ontario, Annual Report 2006-2007, page 18. www.ombudsman.on.ca.

Take, for example, the egregious and well-publicized 2002 case of J.B., who died from septic shock after years of mistreatment by his grandparents. In that case, the local Catholic CAS had removed him and his sister from his parents due to allegations of abuse and placed them with the grandparents who had prior criminal convictions.

The current section 68 complaints procedure came into force five years after J.B.’s death. Ironically, even if it had been in force, it could not have helped J.B. because only “clients” (i.e. parents or children) of a CAS can make a complaint. Although a coroner’s inquest was called, it took J.B.’s death to trigger that. Had J.B. been rescued alive, the coroner would not have had a mandate. J.B., at age six, could not have formulated his own complaint, and his foster grandparents at the time were his perpetrators.

Even his sister, who bore witness to the atrocious indignities he suffered, could not have complained about him because her complaint would have not have been about decisions affecting her interests, as required by section 68.1(4)(5) of the Act.

Likewise, no member of the public could trigger the complaint procedure under section 68 about J.B.’s case, even though section 72 of the Act imposes the duty to report harm to children on a broad group of persons. There is no equivalent provision by which bystanders can access the complaint procedure regarding concerns they have about CAS. Only the CAS’ clients can make complaints, and, as J.B.’s case illustrates, that narrow group of people may never be willing or able to do so.

Footnotes

1. 1R.S.O. 1990, c. C11.
2. 2Section 9 of O. Reg. 494/06 (the “Regulation”).
3. 3This decision was made by a single-member panel of the Board, which did not include any of the three members who sat on the hearing on November 30, 2007. As is its custom, the Board made this determination without notice to the Respondent, and no reasons were given in support of its eligibility decision at this stage.
4. 4Section 16 of the Regulation.
5. 5Section 17 of the Regulation. The Board calls this Summary a pre-hearing “endorsement” sheet.
6. 6Child and Family Services Statute Law Amendment Act, 2006, S.O. 2006, c. 5., [“Bill 210], Section 26.
7. 8Per Section 2(2)(a) of the Act.
8. 9Sections 68(5)(3) and s. 68.1(4)(6) of the Act.
9. 10The meeting was held on March […], 2007. The meeting Summary was due on April […], 2007. The Respondent sent the Summary on July […], 2007.
10. 11Respondent’s Submission in Support of Motion, dated November […], 2007, paras 3 to 11.
11. 13The Child and Family Services Review Board (the “Board” or “CFSRB”).
12. 14Section 68(2), Act.
13. 15Section 3, Regulation.
14. 16Section 5, Regulation.
15. 17Section 7, Regulation.
16. 18Section 9, Regulation.
17. 19Section 6(1), Regulation.
18. 20Sections 6(1) & (2), Regulation
19. 21Section 8, Regulation.
20. 22Section 9 requires the ICRP to send a Summary with the results of the meeting, including any agreed upon next steps. As a practical matter, it also may list the original complaints, along with the Respondent’s own subjective explanations, from its point of view why it did certain things or made certain decisions. As a summary of a meeting, Summary document is closer to a mediator’s report than a set of reasons or a decision.
21. 23As mentioned at footnote #13 in the majority’s decision.
22. 24Hereinafter “Baker.”
23. 25S.J. v. Toronto Catholic School Board, 2006 23951 (ON S.C.D.C.), para 57.
24. 26Section 68(4) of the Act.
25. 27The HPARB is an independent adjudicative tribunal that reviews decisions from the “Complaints Committees” at the 21 colleges that regulate health professionals in Ontario. The Complaints Committees receive allegations that a particular health professional (e.g. physician, dentist, nurse) has acted unprofessionally. The Complaints Committee then screens the complaints and decides whether to escalate the complaint to formal disciplinary charges, to give a verbal reprimand, or to take no further action. If the Complaints Committee does anything other than escalate the complaint to formal disciplinary charges, either party (usually the patient) may apply to the HPARB to review the Complaints Committee’s decision.
26. 28Section 33(1), HPPC.
27. 29Section 35(1), HPPC.
28. 30See for example, Registrar, Board of Funeral Services v. Schmolinski, 2007 48636 (ON S.C.D.C.), para 5, where the Complaints Committee recommended that the funeral home put in place a thorough written policy and procedure for handling personal effects of deceased persons.
29. 31R.S.O. 1990, c. F.36.
30. 32Section 14(9), Funeral Directors and Establishments Act.
31. 33R.S.O. 1990, c. O.6.
32. 34The Ombudsman’s Annual Report explains:
33. 35A Private Member’s Bill to make exactly this change was introduced at 1st Reading: An Act to amend the Ombudsman Act with respect to children’s aid societies, Bill 88, 2nd Session, 38th Legislature, Ontario, 55 Elizabeth II, 5 April 2006. In fact, the new law (i.e. Bill 210) abolished the former “Directors' reviews” and thereby removed what small jurisdiction the Ombudsman of Ontario had previously held under the old law to provide oversight of children’s aid society complaints (see: subsection 68(3) of the former Act).
34. 36The Ombudsman received 600 complaints against children’s aid societies in 2007, which is roughly 5 times the number of CAS complaint applications received by this Board. Source: Ombudsman of Ontario, Annual Report 2006-2007, page 14.
35. 37The Ombudsman’s Annual Report also referred to concerned letters he had received from CAS clients who spoke of retaliatory actions taken by CAS staff when families had complained: see Annual Report 2006-2007, page 18.
36. 38Ironically, some may argue that customers of banks and airlines have rights to a more robust complaint procedure than do clients of an Ontario CAS. For example, see the Financial Consumer Agency of Canada www.fcac- acfc.gc.ca/eng/consumers/Complaints/default.asp and the Ombudsman for Banking Services and Investments www.obsi.ca. Likewise, airline customers have statutory rights to complain to an independent third party about services sought and received: www.cta-otc.gc.ca.
37. 39Neither the ICRP nor the Board has power to review complaints for systemic problems affecting other parties or review a situation at its own initiative. Nor can the ICRP hear a complaint brought by people who observe problems at a CAS but who have not sought or received a service from the CAS.
38. 40Hon. Mrs. Chambers, November 1, 2005, Legislative Assembly of Ontario, www.ontla.on.ca/house-proceedings/transcripts/files_html/2005-11-01_L013A.htm#PARA664
39. 41Inquiry into Pediatric Forensic Pathology In Ontario, affidavit sworn July 16, 2007, www.goudgeinquiry.ca/pws/pdf/10/application_DCI_Affidavit-Finlay.pdf
40. 42Provincial Advocate for Children and Youth Act, 2007, S.O. 2007, c. 9. Section 2 of that Act says that Advocate’s advocacy mandate “does not include conducting investigations.”
41. 7The Board took the phrase “within the purview of court” from the header to Section 68(12) and used it to mean an issue that has been decided by the Court, is before the Court, or is subject to another decision making process.
42. 12It was unclear to the Board what exactly was meant by the use of the word “decision” and whether the decision spoken of referred to the ICRP’s Summary document, or to some other, separate decision by the Respondent. In this case, the ICRP’s Summary document was a letter from the Chair of the ICRP who also signed in his capacity as the Respondent’s Executive Director, and it was hard to see how those were separate.